Workplace bullying and sexual harassment bills go before lawmakers

Proposals before the state Legislature would grant new protections from sexual harassment and bullying in the workplace.

The bills were crafted in response to the #MeToo movement, which became a national force following October reports alleging sexual assault and harassment by Hollywood producer Harvey Weinstein. A flood of allegations against powerful men in a wide range of fields followed and now lawmakers in Washington state say they are trying to change workplace culture to ensure that people who are subjected to bullying or harassment feel empowered to report any abuse.

The effort comes as more Americans are becoming aware of sexual harassment in the workplace. A Washington Post-ABC News Poll in October 2017 found that 64 percent of respondents think it is a serious problem. The poll marks a significant increase from from 2011, when a similar poll found that 47 percent of respondents felt the same. The poll also found that three in 10 women received unwanted sexual advances from a coworker.

A Senate committee on Wednesday heard a package of workplace-focused bills intended to address the issue. The proposed laws would ban certain non-disclosure agreements, require any employee contract to preserve the right to file a sexual harassment complaint, and prohibit workplace bullying of any kind.

SB 5996, sponsored by Senator Karen Keiser, D-Kent, would prohibit an employer from requiring a nondisclosure agreement that would discourage reporting sexual harassment or sexual assault. The bill also provides that such a clause in an employment agreement would be void in court.

Under federal and Washington state law employers can require employees, as a condition of employment, to sign a nondisclosure agreement that prohibits disclosure of certain company facts. This is meant to protect trade secrets and details that would harm the company, but lawmakers fear it could also chill speech about sexual harassment.

It is already unfair practice under the Washington Law Against Discrimination for an employer to retaliate against an employee for disclosing sexual harassment, but the law does not say an employee can still take action despite a nondisclosure agreement.

Another bill, SB 6068, sponsored by Senator David Frockt, D-Kenmore, specifies that nondisclosure agreements cannot be used against a victim in criminal or civil lawsuits and requires the court to ensure the victim’s privacy unless he or she consents to disclosure.

“There would be no ‘Me Too’ movement in this country if women were not allowed to complain and speak up if they need to,” Washington Employment Lawyers Association attorney Katie Chamberlain said.

While she supports the bill’s goals, Chamberlain said the bill should include a clause regarding arbitration agreements. Chamberlain said this can be problematic in employment contracts because someone might unknowingly sign away their right to sue in court if faced with sexual harassment.

SB 6313, also sponsored by Senator Keiser, would require any mandatory employment contract to preserve the right of the employee to file a sexual harassment or sexual assault complaint in court. This bill is attuned to Washington’s status as an at-will employment state where an employee or employer can end the job at any time, unless there is an employment contract.

Yet another bill sponsored by Keiser, SB 6471, creates a work group through the Human Rights Commission to develop a model of best practices around sexual harassment in the workplace.

These measures would change workplace culture, said Barbara Baker, commissioner for the Washington Department of Fish and Wildlife, where multiple sexual assault and sexual harassment allegations against management have recently come to light. A former manager is currently awaiting sentencing for a conviction on rape and burglary charges.

“It’s not a partisan issue,” Baker said. “We have a real problem, people are finally talking about it, and this is a good start.”

A broader form of workplace harassment is addressed in SB 6435, sponsored by Senator Annette Cleveland, D-Vancouver. Her bill, which targets bullying, defines an abusive work environment and provides narrower liability standards than that of the Washington Law Against Discrimination. She said the bill is important because it protects those employees who do not belong to one of the protected classes under the law against discrimination.

“Sometimes the conditions in the workplace are so egregious that we have to step in,” said Senator Maralyn Chase, D-Edmonds, who is sponsoring a similar bill, SB 5423.

Gary Namie, a social psychologist and founder of the Workplace Bullying Institute, said that workplace bullying is three times more prevalent than sexual harassment and often victims feel more fearful to speak out.

He said sexual harassment has a legal protection already, but workplace bullying is not addressed by the current anti-discrimination law.

“This is a bill no good employer should fear,” he said.

This report was produced by the Olympia bureau of the Washington Newspaper Publishers Association.